Citation Nr: 0912248
Decision Date: 04/02/09 Archive Date: 04/10/09
DOCKET NO. 05-35 648A ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Cleveland,
Ohio
THE ISSUE
Entitlement to service connection for a back disability, to
include as secondary to service-connected residuals of a
gunshot wound to the right foot.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
ATTORNEY FOR THE BOARD
S. Patel, Associate Counsel
INTRODUCTION
The Veteran served on active duty from January 1967 to
December 1968.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from an August 2005 rating decision of the
Department of Veterans Affairs (VA) Regional Office in
Cleveland, Ohio (RO), which denied service connection for a
back condition.
The matter was scheduled for a February 2009 videoconference
hearing. The Veteran failed to appear for the hearing
without explanation and has not requested that the hearing be
rescheduled. Therefore, his request for a Board hearing is
considered withdrawn.
FINDING OF FACT
The Veteran's back disability is not etiologically related to
active service and is not etiologically related to a service-
connected disability.
CONCLUSION OF LAW
A back disability was not incurred in or aggravated by active
service, is not proximately due to, the result of, or
aggravated by a service-connected disease or injury, and
arthritis may not be presumed to have been incurred or
aggravated in service. 38 U.S.C.A. §§ 1110, 5103, 5103A,
5107 (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.303, 3.307,
3.309, 3.310 (2008).
REASONS AND BASES FOR FINDING AND CONCLUSION
1. Veterans Claims Assistance Act of 2000 (VCAA)
Under the Veterans Claims Assistance Act (VCAA), when VA
receives a complete or substantially complete application for
benefits, it must notify the claimant of the information and
evidence not of record that is necessary to substantiate a
claim, which information and evidence VA will obtain, and
which information and evidence the claimant is expected to
provide. 38 C.F.R. § 3.159 (2008). Such notice must include
notice that a disability rating and an effective date for the
award of benefits will be assigned if there is a favorable
disposition of the claim. Dingess/Hartman v. Nicholson, 19
Vet. App. 473 (2006); 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A,
5106, 5107; 38 C.F.R. §§ 3.159, 3.326; see also Pelegrini v.
Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II).
The Board notes that effective May 30, 2008, VA amended its
regulations governing VA's duty to provide notice to a
claimant regarding the information necessary to substantiate
a claim. The new version of 38 C.F.R § 3.159(b)(1), removes
the portion of the regulation which states that VA will
request that the claimant provide any evidence in his
possession that pertains to the claim. See 73 Fed. Reg.
23353-54 (April 30, 2008).
Prior to initial adjudication of the Veteran's claim, a
letter dated in July 2004 was sent to the Veteran in
accordance with the duty to notify provisions of VCAA.
38 U.S.C.A. § 5103; 38 C.F.R. § 3.159(b)(1); Quartuccio v.
Principi, 16 Vet. App. 183, 187 (2002). The Veteran was
notified of the evidence that was needed to substantiate his
claim; what information and evidence that VA will seek to
provide and what information and evidence the veteran was
expected to provide, and that VA would assist him in
obtaining evidence, but that it was his responsibility to
provide VA with any evidence pertaining to his claim. See
Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004)
(Pelegrini II). This letter did not address the criteria for
establishing a disability rating or effective date.
In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S.
Court of Appeals for Veterans Claims (Court) held that, upon
receipt of an application for a service-connection claim,
38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to
review the information and the evidence presented with the
claim and to provide the claimant with notice of what
information and evidence not previously provided, if any,
will assist in substantiating, or is necessary to
substantiate, each of the five elements of the claim,
including notice of what is required to establish service
connection and that a disability rating and an effective date
for the award of benefits will be assigned if service
connection is awarded. In this case, although the notice
provided did not address either the rating criteria or
effective date provisions that are pertinent to the
appellant's claim, such error was harmless given that service
connection is being denied, and hence no rating or effective
date will be assigned with respect to this claimed condition.
The Veteran's service treatment records, VA treatment
records, private treatment records and VA examination reports
have been associated with the claims file. The evidence of
record indicates that the Veteran filed for a Worker's
Compensation claim for back pain. Worker's Compensation
records have not been associated with the claims file.
However, the Board concludes that the absence of these
records does not prejudice the Veteran. As the reason for
the denial of this claim is the absence of a nexus between
the Veteran's current back disability and service or a
service-connected disability, the Board concludes that any
Worker's Compensation records would not likely be relevant to
establishing that fact necessary to substantiating the claim.
B. Law and Analysis
In order to establish service connection for a claimed
disability, the facts must demonstrate that a disease or
injury resulting in current disability was incurred in active
military service or, if pre-existing active service, was
aggravated therein. 38 U.S.C.A. § 1110 (West 2002); 38
C.F.R. § 3.303 (2008). Service connection may be granted for
any disease diagnosed after discharge when all the evidence,
including that pertinent to service, establishes that the
disease was incurred in service. 38 C.F.R. § 3.303(d)
(2008). In addition, certain chronic diseases, including
arthritis, may be presumed to have been incurred or
aggravated during service if they become disabling to a
compensable degree within one year of separation from active
duty. 38 U.S.C.A. §§ 1101, 1112 (West 2002 & Supp. 2007); 38
C.F.R. §§ 3.307, 3.309 (2008).
In order to prevail on the issue of service connection on the
merits, there must be medical evidence of (1) a current
disability; (2) medical, or in certain circumstances, lay
evidence of in-service incurrence or aggravation of a disease
or injury; and (3) medical evidence of a nexus between the
claimed in-service disease or injury and the present disease
or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999).
Under section 3.310(a) of VA regulations, service connection
may be established on a secondary basis for a disability
which is proximately due to or the result of service-
connected disease or injury. 38 C.F.R. § 3.310(a) (2006).
Establishing service connection on a secondary basis requires
evidence sufficient to show (1) that a current disability
exists and (2) that the current disability was either (a)
proximately caused by or (b) proximately aggravated by a
service-connected disability. Allen v. Brown, 7 Vet. App.
439, 448 (1995) (en banc). Where a service-connected
disability aggravates a nonservice-connected condition, a
veteran may be compensated for the degree of disability (but
only that degree) over and above the degree of disability
existing prior to the aggravation. Allen, 7 Vet. App. at
448. Temporary or intermittent flare-ups of symptoms of a
condition, alone, do not constitute sufficient evidence
aggravation unless the underlying condition worsened. Cf.
Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002);
Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991).
The provisions of 38 C.F.R. § 3.310 were amended, effective
from October 10, 2006; however, the new provisions require
that service connection not be awarded on an aggravation
basis without establishing a pre-aggravation baseline level
of disability and comparing it to current level of
disability. 71 Fed. Reg. 52744-47 (Sept. 7, 2006). Although
the stated intent of the change was merely to implement the
requirements of Allen, the new provisions amount to
substantive changes to the manner in which 38 C.F.R. § 3.310
has been applied by VA in Allen-type cases since 1995.
Consequently, the Board will apply the older version of 38
C.F.R. § 3.310, which is more favorable to the claimant
because it does not require the establishment of a baseline
before an award of service connection may be made.
Thus, in order to establish service connection for a claimed
secondary disorder, there must be medical evidence of a
current disability; evidence of a service-connected
disability; and medical evidence of a nexus between the
service-connected disability and the current disability. See
Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v.
Brown, 7 Vet. App. 513, 516-7 (1995).
The Veteran is currently service connected for a ruptured
diaphragm, residuals of a gunshot wound to the right foot,
and a thoracotomy scar. The Veteran contends that his
current back disability is aggravated by his service-
connected right foot.
The Veteran's November 1966 pre-induction examination was
negative for any complaints or abnormalities relating to the
back. Service treatment records indicate that the Veteran
was treated for back pain in May 1967. The treating
physician noted a history of an old injury but did not
provide details. X-rays were negative. The Veteran was
treated with heat and Robaxin. After three days, back pain
was significantly better. In February 1968 the Veteran was
seen several times for pain in the ribs and back. He was
diagnosed with a bruised hip muscle. The Veteran's December
1968 separation examination was negative for any complaints
or abnormalities relating to the back.
Private treatment records indicate the Veteran underwent back
surgery in July 2002 for lumbar stenosis and disc herniation.
He underwent a posterior lumbar interbody fusion with cages
at L4-5 and L5-S1. In a letter dated November 2002, the
treating surgeon, Dr. R. noted the Veteran's x-rays looked
good but stated that the Veteran still experienced symptoms
and was disabled from gainful employment. The Veteran also
submitted a similar letter dated September 2006 from the same
surgeon.
The Veteran submitted a letter dated May 2004 from a private
physician, Dr. H, who stated, "In my opinion the patient's
antalgic gait can aggravate his spine."
A VA examination was conducted in July 2005. The examiner
reviewed the claims file. He noted the Veteran underwent
back surgery in 2002, and that an MRI dated October 2003
showed excellent alignment of the cage placements. The
examiner also noted Dr. R.'s opinion that the Veteran was
disabled from gainful employment. The Veteran reported the
circumstances of his right foot injury. The Veteran also
stated that he injured his back in 1992 while carrying folded
tables up some stairs. A subsequent MRI showed a herniated
disc over the lumbar area, and the Veteran was treated with
steroid injections. The Veteran stated that he had no
problems until he sustained a second back injury in April
2000. He slipped and fell as he was exiting his car on his
way to work. He had pain in the low back that radiated down
his left leg. He was initially treated by a company doctor
and placed on light-duty status. After showing no
improvement, he was treated with physical therapy and
medications by an orthopedic surgeon for six months. He then
underwent back surgery in 2002. Postoperative MRIs showed no
evidence of recurrent herniated discs, or central or
foraminal stenosis.
Upon physical examination, the Veteran complained of low back
pain. He did not walk with a limp during the examination,
though the examiner noted the Veteran did walk with a cane.
Based on his review of the claims file, the Veteran's
history, and the physical examination, the examiner concluded
that the fragment wound of the right foot did not aggravate
the Veteran's back condition and that the back condition was
strictly due to a work-related condition. The examiner
explained that the Veteran basically had no problems with
respect to his right foot for almost three decades until 1999
when he began complaining of pain and discomfort over the
third metatarsal area of the right foot. During the time
from 1970 to the end of the 1990s, the Veteran basically
worked in a general laboring job or heavy duty jobs at a
foundry at a company that made safes and eventually as a
custodian or janitor at a school. The examiner noted that
all of these jobs entailed standing, walking, lifting, and
bending, and during this period of time, the Veteran did not
see any physicians in regard to the right foot during this
three decade period. He also noted that the Veteran had two
work-related injuries in 1992 and 2000, respectively, and
that the first one was treated effectively, but the second
treatment ended with a poor result with continued chronic
pain over the back and legs. The examiner stated further
that the gunshot wound was to the third toe and caused injury
to the proximal phalanx with subsequent removal of part of
the proximal phalanx in 1968. The examiner noted that when
he examined the Veteran, he had no pain or discomfort over
the third toe which was the injured part. It was the
examiner's opinion that the Veteran had metatarsalgia of the
third toe that was unrelated to the gunshot wound. The
Veteran's current back condition was strictly due to his
work-related injury of 2000 and the subsequent surgery. The
mechanism of the injury was a fall while the Veteran exited
his vehicle, which was unrelated to the foot injury.
VA treatment record dated from 2006 show treatment for
complaints of right foot pain and surgical amputation of the
right third toe in December 2006; a diagnosis of digital
nerve impingement of the right foot was made in 2007. VA
treatment records show the Veteran was seen in April 2007.
He reported pain in the lower back. He stated that walking
or standing caused pain.
The Veteran underwent a VA examination for nonservice-
connected pension in September 2007. The examiner noted
surgical changes at L4-5 and L5-S1. He also noted a mild
compression deformity at T11. The Veteran was diagnosed with
arthritis of the thoracolumbar spine. The examiner noted
that low back pain began in 1992 after the Veteran sustained
a herniated disc while lifting tables. The examiner did not
offer an opinion as to the relationship between the Veteran's
back condition and service or service-connected residuals of
a right foot gunshot wound.
Private treatment records and VA examinations show that the
Veteran has a current back disability. However, the
Veteran's current back disability is not shown to have been
incurred in service. Service treatment records showed that
the Veteran was treated for back pain. However, the
Veteran's separation examination showed that the spine was
normal. Arthritis did not manifest within one year of the
Veteran's separation from service. The earliest medical
evidence of record of a back disability is 2000, 31 years
after the Veteran's separation from service although the
Veteran has reported that he initially injured his back in a
work-related incident in 1992. Finally, the most probative
evidence of record does not establish a nexus between the
Veteran's current back disability and service or a service-
connected disability. The July 2005 VA examiner opined that
the Veteran's back condition was strictly the result of the
work injury sustained in 2000, and not caused by or a result
of service or service-connected right foot gunshot wound
residuals. He further indicated that the Veteran's back
disability was not aggravated by the Veteran's right foot
disability.
According to the Court, 'the probative value of medical
opinion evidence is based on the medical expert's personal
examination of the patient, the physician's knowledge and
skill in analyzing the data, and the medical conclusion the
physician reaches.' Guerrieri v. Brown, 4 Vet. App. 467, 470
(1993). The credibility and weight to be attached to these
opinions is within the province of the Board. Id. In this
case, the Board finds that the July 2005 VA opinion provides
the most probative evidence of record with respect to the
etiology of the Veteran's back disability. The medical
evidence reviewed and discussed by the VA examiner was
factually accurate. Based on all the evidence and on his
expertise, the examiner provided an opinion and provided
bases for his conclusion. In contrast, the May 2004 private
opinion simply noted that the Veteran's altered gait "can"
aggravate his spine. The opinion was not entirely clear, and
was not supported by any underlying reasons or bases. VA
regulation provides that service connection may not be based
on a resort to speculation or even remote possibility. See
38 C.F.R. § 3.102; Obert v. Brown, 5 Vet. App. 30, 33 (1993);
Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (medical
evidence which merely indicates that the alleged disorder
"may or may not" exist or "may or may not" be related, is too
speculative to establish the presence of the claimed disorder
or any such relationship). Stegman v. Derwinski, 3 Vet. App.
228, 230 (1992) (evidence favorable to the veteran's claim
that does little more than suggest a possibility that his
illnesses might have been caused by service radiation
exposure is insufficient to establish service connection);
Dixon v. Derwinski, 3 Vet. App. 261 (1992) (a claim must be
accompanied by evidence that suggests more than a purely
speculative basis for granting entitlement); Bostain v. West,
11 Vet. App. 124, 127-28 (1998); Obert v. Brown, 5 Vet. App.
30, 33 (1993); Warren v. Brown, 6 Vet. App. 4, 6 (1993) (a
doctor's statement framed in terms such as "could have
been" is not probative.) Accordingly, this opinion is
insufficient evidence of a nexus or relationship between the
Veteran's current back disability and his service-connected
gunshot wound residuals.
Based on the July 2005 VA opinion, the Board finds that
service connection for a back disability, to include as
secondary to a service-connected right foot disability, is
not warranted.
C. Conclusion
Although the Veteran has currently diagnosed back disability,
the record provides no competent evidence that the disability
was incurred or aggravated in service and arthritis did not
manifest within a year following the Veteran's separation
from service. The most probative evidence of record does not
establish a nexus between the Veteran's current disability
and service or any service-connected disability. Therefore,
the Board concludes the preponderance of the evidence is
against finding that the Veteran has a back disability
etiologically related to active service, or to a service-
connected disability. The appeal is accordingly denied. In
making this determination, the Board has considered the
provisions of 38 U.S.C.A. § 5107(b) regarding benefit of the
doubt, but there is not such a state of equipoise of positive
and negative evidence to otherwise grant the Veteran's claim.
ORDER
Service connection for a back disability is denied.
____________________________________________
S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs